MS M GILLESPIE v ST MARTINS HOSPITAL GROUP (DEVONSHIRE HOSPITAL) [2000] UKEAT 1348_98_2003

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1348_98_2003Case No Appeal No. EAT/1348/98 EAT/1417/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS M GILLESPIEAPPELLANTST MARTINS HOSPITAL GROUP (DEVONSHIRE HOSPITAL)RESPONDENT
Before
Mr Justice LindsayDate 20 March 2000
[1]APPEARANCES For the Appellant MR N BOOTH (of Counsel) Instructed By: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW For the Respondents MR M O'CONNOR (Employment Consultant) Instructed By: Legal Protection Group Ltd Marshalls Court Marshalls Road Sutton Surrey SM1 4DU MR JUSTICE LINDSAY (PRESIDENT) : This morning, 20 March 2000, this matter was in front of this and we gave a judgment in it. Unfortunately, it transpires that either the tape or the tape recording machine was not adequate and the judgment was not recorded. I have been asked to reconstitute what was said this morning and that I now do. I have in front of me the note that I made this morning and from which I spoke this morning and so I am confident that, at any rate in substance, what now is about to be dictated is extremely similar to what was said this morning, though I do not pretend that it is a verbatim judgment as it was this morning. The judgment runs as follows. We have before us by way of a full appeal two appeals of Mrs Gillespie in the matter Gillespie against St Martins Hospital Group. Mr Booth appears for Mrs Gillespie and Mr Michael O'Connor of First Assist for the Hospital Group. We shall deal first with the first in time of the appeals and first explain the procedural background.[2]On 14 November 1997 (and it is notable how long ago that date was) the Employment Tribunal received an IT1 from Mrs Gillespie, who has a hearing difficulty. In box 1, which is headed "Please give the type of complaint you want the tribunal to decide" she filled it in as "Unlawful dismissal on grounds of disability". In box 4 "Please give the dates of your employment" it was filled in as from "10 December 1996 to 20 July 1997". It is important to note that that is the date she herself provided. In box 10, she asked for re-engagement or compensation.[3]On 9 December 1997 the employer, the Hospital Group, lodged an IT3 and it said, in box 4 "Are the dates of employment given by the applicant correct?". Answer:
"Yes" and, at box 3, "
Was the applicant dismissed?". Answer:
"Yes" and the reason given, "
Capability/Some other substantial reason". It is important to note that therefore it was common ground, on the face of the papers at any rate, that the employment ended on 20 July 1997. This point was taken up in the IT3 at paragraph 8 (5), where it says:
"Additionally, the Applicant asserts that she was dismissed on 20.7.97. The application is therefore out of time and it is respectfully requested that this matter is subject to a preliminary hearing to establish whether the Tribunal has jurisdiction to hear the complaint."
The Tribunal responded to that with a letter of 17 January 1998 that reads as follows:
"1 The Chairman who has been dealing with this case has considered the documents and directed that there should be a preliminary hearing. This hearing will be limited to consideration of the following preliminary issue: …"
And it is important to notice those words "will be limited to consideration of the following preliminary issue:
" and then it continues: "(i) Whether, having regard to the time limit contained in paragraph 3 of schedule 3 to the Disability Discrimination Act 1995 (three months), a Tribunal has jurisdiction to consider the applicant's complaint of disability discrimination."
And a little below that, paragraph 3 reads as follows:
"3 A notice of hearing will be sent in due course."
[4]It came about that on 20 January 1998 notice was given of a hearing to be on 17 February but it seems that Mrs Gillespie on 26 January asked that the matter should be adjourned and it was, to 13 March, and then on 13 March 1998 there was the hearing. The hearing was before Mrs R.S. Martin, sitting alone, at London (North). On 27 March 1998 the decision was sent to the parties and the conclusion was:
"The decision of the Tribunal is that it has no jurisdiction to hear the Applicant's claim of unlawful dismissal on the grounds of disability."
[5]The Tribunal had not had Mrs Gillespie before it nor any representative of hers. She had supplied a medical certificate the day before but on the very day, 13 March, she had indicated to the Tribunal that it could go ahead without her presence. The Tribunal knew that it was her claim that she did not know she had been dismissed until 20 October 1997. In paragraph 1 of the Extended Reasons the Chairman says:
"1 … She claims that she was dismissed, that she did not know she had been dismissed until she received her P45 on 20 October 1997 and that her application is therefore within time. The Respondents state that they dismissed the Applicant at the termination of her last session on 20 July 1997, sending her her P45 on 20 October 1997 was an administrative act which was triggered by the fact that she had not offered them any availability dates for three months, and had she wished to do so she could have been reinstated on the register at any time."
That situation came about, so the Tribunal held, for the following reasons set out in paragraph 2 of the Tribunal's decision, namely:
"2 The Applicant was engaged under a contract dated 4 December 1996 which stated that she would be included on the Respondent's 'Bank List' and would be employed on an 'as and when' basis. The routine was for the bank nurses to phone the hospital on a Sunday giving their availability for work during the coming week, and that work would be allocated according to the Respondent's needs. Nurses were paid individually for each session they worked, they were under no obligation to offer the Respondents time, and the Respondent was under no obligation to offer work."
And a little later the Tribunal said:
"The Respondent's case however is that each session worked was independent of the others and that the conclusion of each session meant effectively that the Applicant had been dismissed."
[6]There was no issue on 13 March as to 20 July 1997 being the date of dismissal; that had been averred in the IT1 and accepted in the IT3. That was clear, but there was plainly an issue as to when Mrs Gillespie first knew of it. Her IT1 was of 14 November 1997, only shortly after the 20 October 1997 date which she claimed was when she first knew of the dismissal. Indeed, it has transpired today, in answer to questions put by the Tribunal, that any disability component in the dismissal may not have emerged until early in November 1997, although for immediate purposes it does not matter because both October 1997 and early November 1997 would be dates which would make, or could be claimed to make, Mrs Gillespie's claim within time.[7]The relevant legislation which we will not take time up to read is found in the Disability Discrimination Act 1995, Part II, Section 4(2)(d), Section 5(1)(a) and (b), Section 8(1) and Schedule 3, paragraph 3(1) and paragraph 3(2) and the relevant question is "When was the act complained of done?" Now it would seem here that it was not later than 20 July 1997 and so an IT1 lodged on 14 November 1997 was manifestly out of time. However, Schedule 3, paragraph 3(2) confers a discretion on the Tribunal to extend time where it is just and equitable in all the circumstances so to do.[8]Returning to the decision of the Tribunal, it made two findings. The first is this, in paragraph 3:
"3 The finding of the Tribunal is that there was no dismissal in this case, since the contractual arrangements entered into by the parties were never formally terminated by the Respondents. …"
[9]With respect, that goes quite outside the terms of the letter of 17 January 1998, which we have already referred to, and it contradicts the common ground between the IT1 and the IT3 that the dismissal had been on 20 July 1997. Whether it would have been proper so to decide if Mrs Gillespie had been present and had had the matter explained to her may be different, but where a Tribunal in writing tells parties that it will limit itself to a particular question, and where a party who has tendered a medical certificate does not herself attend but says the Tribunal can go ahead without her being present, it must be an error of law for the Tribunal to go outside the specified issues and the common ground that exists in the matter. This ground, as it seems to us, alone suffices for the decision promulgated on 27 March 1998 to be set aside.[10]We said that there were two findings of the Tribunal and the second is as follows:
"4 The Tribunal further finds that if there were a termination of this contract amounting to a dismissal that that termination occurred on 10 July 1997. …"
That, of course, contradicts the common ground that is observable in the IT1 and the IT3 that the date of dismissal was 20 July 1997.[11]Mr O'Connor, not unnaturally, says that the reference to 10 July is simply a typing error, but, if it is, it hardly adds confidence, especially since the same error occurs a few lines later where 10 July is mentioned for a second time. It is fair to say that in paragraph 1, 20 July is mentioned by the Chairman but there is no explanation given for her selection in paragraph 4, twice over, of 10 July. That might or might not be an error of law; we have no further explanation of it. On the face of things, it is just simply wrong and in conflict with the submissions of the parties and the common ground that we have described.[12]There is a third area which gives concern and that is this. As it was common ground that the dismissal was on 20 July 1997 and that the IT1 was dated 14 November 1997, the question of jurisdiction truly depended on whether it was just and equitable to grant an extension. As to that, the Tribunal knew of Mrs Gillespie's contention that she had not known that she was dismissed until 20 October 1997 but, of course, she did not turn up to give any evidence in that regard.[13]It might have been wiser, when she telephoned to indicate that she was content that the matter should go ahead without her, to caution her that her absence might lead to an adverse consequence on the most substantial question of the day, namely whether there should or should not be an extension of time on just and equitable grounds. If she had been then told that it was up to her to make the running on an application for an extension of time, which was the only way in which her case could be permitted to go forward to a full hearing on the merits, one does wonder whether she would still have said "Go ahead without me". But it is very strange that the Tribunal makes no mention at all of the justice and equity of granting an extension or, indeed, of refusing an extension. Mr O'Connor, who was there on the day, very candidly tells us that the matter was dealt with in argument but he accepts, of course, as he must, that there is no mention of it whatsoever in the reasoning of the decision.[14]There is nothing to say, either, that Mrs Gillespie's assertion that she did not know that she had been dismissed any earlier than 20 October 1997 was disbelieved. There is therefore, an argument, which Mr O'Connor candidly accepts has force, that the principle of Meek v City of Birmingham District Council [1987] IRLR 250 has been breached here. That case, as is well known, indicates that decisions of tribunals are not to be gone through with fine tooth combs and that highly detailed reasoning is not to be expected but that nonetheless a party is entitled to know at least why he or she has won or lost.[15]If Mrs Gillespie asked herself, despite her claim that she did not know until 20 October 1997 that she had been dismissed (and given also that there is no indication that that claim was disbelieved) why it was that there was not an extension of time in her favour, and why, accordingly, the only real issue for that day was lost by her, she would find the subject entirely unmentioned in the decision. We do see that to be a major error of law. The first one which we identified earlier suffices but there is this additional one. Accordingly, we shall set aside the decision promulgated on 27 March 1998.[16]We now turn to the second appeal. On 1 September 1998 a three-person Tribunal had before it an application by Mrs Gillespie for a review of the decision of 27 March and it refused a review. Its reasons were sent to the parties on 7 October 1998. However, that decision now loses all relevance, as the underlying decision is set aside for the reasons we have given. It seems appropriate to us, although we will invite the parties at the end to say otherwise if necessary, that there should be no order on that second appeal.[17]To revert to the question of jurisdiction, having set aside the decision we must now consider how and to whom the matter should be remitted. We think it should not be remitted to anyone who has yet sat on the matter, namely the parties to the decision of 27 March 1998 or to the decision promulgated on 7 October 1998. It is to be considered by a fresh Tribunal. But what has given us some reason to pause for thought is whether we should remit the matter en bloc , so to speak, or whether it should be kept separate so that jurisdiction is dealt with separately, as had been the plan at the outset. We have invited both Mr Booth and Mr O'Connor to address us on the question.[18]As Mr O'Connor says, there is a risk that if the matter is not separated out the parties will be put to the expense and delay of a full merits hearing which transpires to be unnecessary in the sense that it is possible that Mrs Gillespie should lose the jurisdiction issue. On the other hand it seems to us that the issues are so enmeshed here that it is more convenient that they should be all heard together. Moreover, if there is to be a separate jurisdiction preliminary hearing and if Mrs Gillespie wins then there has to be, of course, a separate merits hearing and that would unduly prolong the matter which, as we have indicated, began with an IT1 lodged as early as 14 November 1997.[19]On balance therefore we think the better course is that the fresh Tribunal should hear the matter en bloc , not separating out jurisdiction from other issues in terms of there being a separate preliminary hearing. Of course, the Tribunal will need to rule upon jurisdiction and the stage at which it does so will be entirely left for it to decide. It will, of course, be important for the Tribunal to establish just when it was that Mrs Gillespie first knew that she had been dismissed and that will plainly be a factor, and an important one, in its decision as to whether, in justice and in equity, there needs to be an extension in this case. That is completely a matter for the fresh Tribunal that hears the case.[20]Mrs Gillespie will no doubt by now have been made aware that if she is neither present in person or by representation at the remitted hearing there is a real risk that no extension would be granted to her. If she does not attend and is not represented, Mr O'Connor or whoever appears on the day for the hospital will no doubt make the very submission that he made last time, namely that it was for her to adduce evidence on the subject and that in her absence there was no reason to grant an extension.[21]So Mrs Gillespie would be wise to ensure that she is represented, if at all possible, or, failing that, at any rate attends and gives evidence, but we leave to the hands of the fresh Tribunal all questions in relation to the granting or withholding of the extension of time which will entirely be a matter for them to decide upon as part of the whole case which we remit, as we have indicated, en bloc , rather than in separate packages as it had previously been dealt with.